THIS OPINION IS NOT DESIGNATED FOR PUBLICATION AND MAY NOT BE CITED, PURSUANT TO M.R.A.P. 35-B

DATE OF JUDGMENT: 01/09/97

TRIAL JUDGE: HON. BARRY W. FORD

COURT FROM WHICH APPEALED: LEE COUNTY CIRCUIT COURT

NATURE OF THE CASE: CIVIL - OTHER

TRIAL COURT DISPOSITION: UNEMPLOYMENT BENEFITS DENIED.

DISPOSITION REVERSED AND REMANDED - 4/21/98

Pursuant to her employer's discharge of her employment as a telecommunicator and dispatcher for the Lee County Communications Center, Brenda J. Garrett filed her claim for unemployment benefits with the Mississippi Employment Security Commission (MESC). Garrett's initial claim was denied by the claims examiner on the ground that Garrett's termination was the result of her misconduct. Garrett appealed the decision to the appeals referee who stated that the evidence did not rise to the level to show misconduct on the part of Garrett and that she was therefore entitled to unemployment benefits. An appeal to the Board of Review resulted in a reversal of the appeals referee and the Lee County Circuit Court affirmed the decision of the Board of Review to deny Garrett's claim for unemployment benefits on the ground of misconduct. This Court is aware that its review of an Employment Security Commission ruling is limited to determination of whether the decision is supported by substantial evidence, but because we find MESC's ruling was not supported by substantial evidence and because we further find that Garrett's activities about which her employer complained did not constitute misconduct, we reverse and remand this case to the Mississippi Employment Security Commission for proceedings consistent with this opinion.

FACTS

Brenda J. Garrett was employed for approximately three years as a telecommunicator and dispatcher for the Lee County Communications Center (LCCC). Garrett was terminated by her employer on June 14, 1996 after an investigation led the employer to believe that Garrett had either removed confidential recordings of 911 information or had allowed such information to be removed from the employer's place of business. The act of alleged misconduct by Garrett occurred a year and a half prior to her termination. The events surrounding this alleged misconduct are as follows.

In August or September of 1994, Garrett and other employees of LCCC became aware of telephone conversations between 911 dispatcher Krista Abercrombie and her boyfriend, Tim Clouse. According to Garrett and the other employees, these conversations consisted of threats to police officer Nikola Wright in which Abercrombie and Clouse discussed sending Wright on a police call without any backup, doing something to her car to cause an accident, and revealing an alleged tape that would cost Wright and Lieutenant Randy Johnson their jobs. These alleged telephone conversations emanated from the 911 center where all incoming and outgoing calls are tape recorded twenty-four hours a day.

Garrett, along with several other dispatchers, became concerned about the escalating nature of the threats to Officer Wright and decided to contact Lieutenant Johnson *fn1 with the Tupelo Police Department. Garrett testified that on Lieutenant Johnson's initial visit to the 911 center, she and the other dispatchers told him about the conversations between Abercrombie and Clouse, and that on Johnson's second visit to the 911 center, Garrett allowed Johnson to listen to the tape recorded conversations. Garrett testified that she and the other dispatchers also called Officer Wright to come to the 911 center where they told her about the threats. Based on these reports, Officer Wright contacted her captain, Jackie Clayton, who then notified the 911 administrator, Bennie McDowell. In November of 1994, a meeting was held between Captain Clayton, Officer Wright, Bennie McDowell, and Krista Abercrombie. According to McDowell and Wright, Abercrombie apologized for any statements she may have made against Wright. Following this meeting, McDowell ...

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